Citation Nr: 0203419
Decision Date: 04/15/02 Archive Date: 04/26/02
DOCKET NO. 98-16 134A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Fort
Harrison, Montana
THE ISSUE
Entitlement to the assignment of an extraschedular evaluation
pursuant to the provisions of 38 C.F.R. § 3.321(b)(1) for
chronic low back pain with degenerative disc disease.
REPRESENTATION
Appellant represented by: Montana Veterans Affairs
Division
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Hilary L. Goodman
INTRODUCTION
The veteran had active duty from March 1983 to December 1992.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Fort Harrison,
Montana.
This case was previously before the Board in March 2000, on
which occasion it was determined that the veteran was not
entitled to an evaluation in excess of 20 percent for chronic
low back pain with degenerative disc disease. The Board
found that the veteran's service-connected low back
disability was not manifested by severe limitation of motion,
severe symptoms of intervertebral syndrome or severe
lumbosacral strain.
In addition to entering a final decision on the issue of the
veteran's entitlement to an increased schedular evaluation,
the Board remanded the case for consideration of whether an
extraschedular evaluation was warranted for the veteran's
back disability. Such action having been completed, the case
is again before the Board for appellate review.
FINDING OF FACT
As marked interference with the veteran's employment as the
result of his service-connected low back disability has been
demonstrated, the case presents such an exceptional or
unusual disability picture as to render impractical the
application of the regular schedular standards.
CONCLUSION OF LAW
The criteria for the assignment of an additional 10 percent
extraschedular rating for the veteran's service-connected low
back pain with degenerative disc disease, currently rated 20
percent on a schedular basis, have been met. 38 U.S.C.A.
§ 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1) (2001).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Board notes at the outset that there has been a
significant change in the law during the pendency of this
appeal. On November 9, 2000, the Veterans Claims Assistance
Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096
(2000) (codified as amended at 38 U.S.C.A. §§ 5100 et seq.
(West Supp. 2001)) became law. VA has also revised the
provisions of 38 C.F.R. § 3.159 effective November 9, 2000,
in view of the new statutory changes. See 66 Fed. Reg.
45620-45632 (August 29, 2001). This law redefined the
obligations of VA with respect to the duty to assist and
included an enhanced duty to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits. This law also eliminated the concept of a
well-grounded claim and superseded the decision of the United
States Court of Appeals for Veterans Claims (Court) in Morton
v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton
v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per
curiam order), which had held that VA could not assist in the
development of a claim that was not well grounded. This
change in the law is applicable to all claims filed on or
after the date of enactment of the VCAA, or filed before the
date of enactment and not yet final as of that date. VCAA,
§ 7(a), 114 Stat. at 2099-2100.
The veteran is seeking an extraschedular evaluation for his
service-connected low back pain with degenerative disc
disease. After examining the record, the Board is satisfied
that all relevant facts pertaining to the veteran's claim
have been properly developed. The Board finds that the RO
has obtained, or made reasonable efforts to obtain, all
records which might be relevant to the veteran's claim. The
Board notes that no further assistance to the veteran in
acquiring evidence is required by the new statute.
The Board finds no prejudice to the veteran in this case by
proceeding with an adjudication of the issue of an
extraschedular evaluation for his service-connected low back
pain with degenerative disc disease as the RO has complied
with the notice provisions of the VCAA and its implementing
regulations. This is so because the RO specifically notified
the veteran of the requirements needed for an extraschedular
evaluation for his service-connected low back pain with
degenerative disc disease in the June 2000 supplemental
statement of the case and notified the veteran of the
provisions of the VCAA in the September 2001 supplemental
statement of the case.
In August 2001, VA regulations implementing VCAA were issued;
as the RO has already complied with the notice provisions of
the VCAA the Board finds no prejudice to the veteran in this
case by proceeding with an adjudication of an extraschedular
evaluation for his service-connected low back pain with
degenerative disc disease. The Board finds that all relevant
facts have been properly developed and no further assistance
to the veteran is required to comply with the duty to assist
mandated by 38 U.S.C.A. Chapter 51. There has been no
prejudice to the veteran that would warrant a remand, and the
veteran's procedural rights have not been abridged by
proceeding with appellate review. Bernard v. Brown, 4 Vet.
App. 384, 393 (1993).
Factual Background
The current record shows that the veteran underwent a VA
examination in February 1998. At this time the veteran
reported, among other things, that he continued to experience
chronic back pain, as well as stiffness in the morning when
he arose, and by the end of the day. He reported that he was
employed as a pipe layer, and that he did not miss work,
stating that "I have to eat." Additionally, he reportedly
took three to four tablets of Tylenol when his back pain
flared up, and continued to work at his job. He took the
Tylenol once during the day and then at night if necessary,
approximately every eight hours. According to the veteran,
the Tylenol helped if the back pain was mild and it relieved
the pain or took the edge off more intense pain. His back
pain was also relieved by rest.
The veteran reported that he wore a "preventive back injury
back" for lifting, but did not use a back brace. He also
reported that he was able to continue his work with his back
pain flare-ups, but that he found himself very stiff at the
end of the day, and the next morning. On examination, it was
noted that the veteran's back was painful at extremes of
motion. He reported that he could feel a pull in his low
back, but that the pain was not marked until he got to the
extremes of motion. Range of motion testing showed flexion
to 50 degrees, extension to 30 degrees; right rotation to 30
degrees, left rotation to 40 degrees, and right and left
lateral bending to 25 degrees.
Deep tendon reflexes were found to be symmetric and normal.
The veteran was also found to have normal sensation to light
touch. It was noted that he had pain in both lower
extremities. Additionally, it was noted that straight leg
raising at 30 degrees caused pain in the low back and
buttocks area. The examiner found no neurologic
abnormalities. No spasm was palpable within the back with
motion. The veteran exhibited normal gait, and there were no
posture abnormalities. It was noted that he walked on his
heels and toes without difficulty. Also, he did not
experience fatigue from back pain, or sensations of weakness.
In a July 1998 VA Vocational Rehabilitation report of
Counseling and Outcomes, it was noted that the veteran had
applied for Chapter 31 benefits, indicating that, because of
the residuals of back problems, he was having significant
difficulties maintaining his current employment as a pipe
layer. It was noted that the essential job functions of his
employment tended to aggravate his service-connected back
disability. He was currently employed as a laborer/ pipe
layer and it was reported that his specific job functions
appeared to be too strenuous for his disabling condition.
The counseling psychologist stated that, based upon the
veteran's low back disability, it would be found that the
veteran more then likely was and should be restricted to
sedentary to no more then medium duty work occupations. It
was indicated that specific restrictions would likely include
lifting and carrying no more then 25 to 50 pounds as well as
pushing and pulling.
It was reported that, as the veteran only had appropriate
transferable skills in the heavy duty labor types of
industries, it appeared that he would need some form of
training in order to find appropriate transferable skills.
It was noted that, although currently employed, his current
employment was certainly not consistent with his residual
functional capacities.
At an October 1998 personal hearing, the veteran described
his back pain as shooting or radiating in nature. He said
it was like "hot acid," and that it would radiate down his
buttock and thigh into his toe. Other times, it was just a
dull throb. He described intermittent relief but moving the
wrong way aggravated his back. He also indicated that he
would sometimes wake up sore in the morning. The veteran
further testified that he was unemployed and undergoing a
rehabilitation program because of his back disorder. This
program included schoolwork to become a teacher. He
testified that he left the construction field because of
concerns that it would cause additional damage to his back.
He stated that his physician had informed him that if he
continued in the construction field he would end up in a
wheelchair. The veteran indicated that the frequency of his
attacks of back pain varied depending on what he was doing,
but that it occurred at least once a week. He testified that
he took anti-inflammatory medication (Naprosyn) and that he
had previously missed work because of his back pain, but not
enough that he risked being fired. He also stated that he
continued to do some part-time work in that he would help his
brother-in-law install forced air heating systems.
At an October 2001 hearing on appeal, the veteran testified
that working as a pipe installer had adverse effects on his
low back and that he had experienced marked interference with
employment due to constant pain and sciatica since 1998. He
related that he was undergoing vocational rehabilitation
training as a school teacher and indicated that he expected
to be ready to be employed as a teacher in the fall of 2002.
Analysis
In this case, the veteran's service-connected low back
disability is currently rated 20 percent under Diagnostic
Code 5295 of the VA Schedule for Rating Disabilities, which
is based on average impairment of earning capacity. Under
Diagnostic Code 5295, for lumbosacral strain, a 20 percent
evaluation requires muscle spasm on extreme forward bending
and unilateral loss of lateral spine motion in a standing
position. Under Diagnostic Code 5293, for intervertebral
disc syndrome, a 20 percent evaluation applies if there are
moderate; recurring attacks. 38 C.F.R. § 4.71a, Diagnostic
Codes 5293 and 5295 (2001). As noted in the Introduction to
this decision, a March 2000 Board decision denied the
veteran's appeal for a schedular rating in excess of 20
percent for his low back disability and remanded the issue of
entitlement to an extraschedular rating for his low back
disorder. The latter issue remains in appellate status.
In the aforementioned March 2000 remand the Board noted that
in Floyd v. Brown, 8 Vet. App. 88 (1996), the Court held that
the Board did not have jurisdiction to address the provisions
of 38 C.F.R. § 3.321(b)(1) in the first instance, but that
the Board was still obligated to seek out all issues that
were reasonably raised from a liberal reading of documents or
testimony and to identify all potential theories of
entitlement to a benefit under the law and regulations.
Accordingly, the issue was remanded and the RO was asked to
request employment information from the veteran as well as
any available official vocational rehabilitation records and
to then adjudicate the claim for an extraschedular rating
under 38 C.F.R. § 3.321(b)(1).
38 C.F.R. § 3.321(b)(1) provides that ratings shall be based
as far as practicable, upon the average impairments of
earning capacity with the additional proviso that the
Secretary shall from time to time readjust this schedule of
ratings in accordance with experience. To accord justice,
therefore, to the exceptional case where the schedular
evaluations are found to be inadequate, the Under Secretary
for Benefits or the Director, Compensation and Pension
Service, upon field station submission, is authorized to
approve on the basis of the criteria set forth in this
paragraph an extra-schedular evaluation commensurate with the
average earning capacity impairment due exclusively to the
service-connected disability or disabilities. The governing
norm in these exceptional cases is: A finding that the case
presents such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards. 38 C.F.R. § 3.321(b)(1).
The central question here is whether an exceptional or
unusual disability picture is presented with such related
factors as marked interference with employment. Review of the
veteran's employment history and medical history leads the
Board to conclude that there is evidence that his service-
connected low back disability presents such an exceptional or
unusual disability picture. As evidenced by the employment
history above, the veteran had been employed as a laborer
whose duties were difficult to perform because of his
service-connected low back disability and were found to place
him at risk for further damage to his low back.
In 1998, the veteran took the opportunity to seek retraining
under the VA vocational rehabilitation program. He
apparently left his job as a laborer some time between July
and October 1998 and he has pursued another line of
employment, expecting to be working as a school teacher
beginning in the fall of 2002. Relying on the record, the
Board determines that, in addition to the current schedular
rating of 20 percent, the veteran's low back condition
warrants an extraschedular rating of 10 percent under the
provisions of 38 C.F.R. § 3.321(b)(1).
The Board finds that the record demonstrates marked
interference with employment as, because of the veteran's
service-connected low back disability, he was required to
discontinue his employment as a heavy laborer and seek, by
way of retraining, a new career. Such marked interference
with employment is to a much greater degree than that
contemplated by the regular schedular standards which are
based on the average impairment of employment and under which
the veteran is compensated at only 20 percent. Accordingly,
the assignment of an additional 10 percent extra-schedular
evaluation is warranted for the veteran's service-connected
low back disability.
ORDER
Entitlement to the assignment of an extraschedular evaluation
of 10 percent for chronic low back pain with degenerative
disc disease, pursuant to the provisions of 38 C.F.R.
§ 3.321(b)(1), is granted. The appeal is allowed, subject to
the law and regulations governing the payment of monetary
benefits.
R. F. WILLIAMS
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.